Cave v. Gill

• Decision Date: 15 February 1901
• Citation: 37 S.E. 817,59 S.C. 256
• Parties: CAVE v. GILL.
• Court: South Carolina Supreme Court

37 S.E. 817

59 S.C. 256

CAVE v. GILL.

Supreme Court of South Carolina

February 15, 1901

Appeal from common pleas circuit court of Barnwell county; J. H Hudson, Judge.

Action by L. M. Cave against W. V. Gill. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

J. O Patterson, for appellant.

I. L Tobin, for respondent.

GARY A. J.

The appeal herein is from an order overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The following is a copy of the complaint, to wit:

"The complaint of the above-named complainant respectfully shows that the defendant above named is indebted to the plaintiff, for brick sold and delivered by the plaintiff to the defendant, in the sum of six hundred and five dollars and forty-five cents, as appears by itemized account verified, hereunto annexed as a part of the complaint, and refuses to pay same. Wherefore plaintiff demands judgment against the defendant for six hundred and five dollars and forty-five cents."

The following is the exhibit annexed to the complaint:

"Sieglingville, S. C., 2/9/1899.

"Mr. W. V. Gill, bought of L. M. Cave.

1898.
Delivered Nov. 1. To	23,800 brick
Delivered Nov. 1. To	6,200 brick
Delivered Nov. 5. To	30,500 brick
Delivered Nov. 9. To	10,000 brick
Delivered Nov. 11. To	10,000 brick
Delivered Nov. 11. To	10,000 brick
November 17. By cash

$ 300.00

Delivered Nov. 17. To	10,000 brick
Delivered Dec. 7. To	10,000 brick
Delivered Dec. 14. To	10,000 brick
Delivered Dec. 14. To	10,000 brick
Delivered Dec. 19. To	10,000 brick
Delivered Dec. 20. To	10,000 brick
1899.
Delivered Jan. 16. To	10,768 brick
Delivered Jan. 18. To	5,000 brick
Delivered Jan. 18. To	6,000 brick

172,468[at]$ 5.25

$ 905.45

300.00

Balance due

$ 605.45

"South Carolina, Barnwell County. Personally appeared before me L. M. Cave, and made oath that the above account is true and correct, and same has not been paid. Sworn to before me this 10 Feb., 1899. J. C. Spann, Notary Public. [L. S.] L. M. Cave."

The appellant assigns error on the part of his honor, the presiding judge, in overruling the demurrer, "for the reason that no contract or agreement is alleged, and no statement of the value of the brick alleged to have been sold is made; that the complaint alleges conclusions of law, and the facts are not stated; that the complaint implies an action on contract, and the annexed exhibit does not supply necessary allegations of facts omitted and not set out in the complaint."

The authorities are not uniform as to whether an instrument of writing annexed to the complaint, and alleged to be part thereof, can be considered in determining the sufficiency of the allegations of the complaint when a demurrer is interposed. 6 Enc. Pl. & Prac. p. 299, note. In 8 Enc. Pl. & Prac. p. 740, the rule is thus stated: "In the absence of a statute, the annexing and filing of papers as exhibits to a pleading does not make them a part thereof, and they cannot be referred to for the purpose of supplying the omission of a material allegation curing a fatal defect ***" In the case of Burkett v. Griffith (Cal.) 27 P. 527, 13 L. R. A. 707, the court says: "Matters of substance must be alleged in direct terms, and not by way of recital or reference,--much less by exhibits merely attached to the pleading. Whatever is an essential element to a cause of action must be presented by a direct averment, and cannot be left to an inference...